Sophie Smith speaks to Property Week on NPPF response and Nature Reservation Fund
10 January 2025
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In December, the Ministry of Housing, Communities and Local Government published their response to the National Planning Policy Framework, developing their green-belt policies and further defining grey belt land. Adding to the discussion, they also published plans for a new Nature Reservation Fund, designed to help developers with their environmental mitigation costs.
A key takeaway is that the government has changed plans for a flat 50% affordable housing requirement on green belt land, instead having a variable premium ranging from 15% to 50%, on top of the targets set by local plans.
Sophie Smith, Associate on our Planning team, spoke to Property Week on how open to interpretation these requirements are now, and how this will affect identifying grey belt land.
“[The number of appeals will depend on] how local authorities seek to interpret and apply the new policy on a local application specific level”.
On the new Nature Reservation Fund, this could “iron out the delays in the development process”. With scheme environmental aspects often the cause of additional work and delays, the fund could possibly give “greater certainty to developers as to how these issues can be addressed and mitigated much earlier in the development process”.
Biodiversity net gain (“BNG”) is now an integral part of the planning system, mandatorily applying to all applicable developments and requiring at least a 10% uplift of the biodiversity value of the site post-development.
BNG is a point to be considered at site acquisition and appraisal stage, as well as being factored into the design and planning application. Here are five key points to know for those developing land which will be subject to the BNG requirements:
1. Planning permissions granted or applied for before the BNG regime took effect are not subject to the statutory requirements.
The BNG regime took effect on 12 February 2024 for the majority of sites, and 2 April 2024 for small sites.
A planning permission already granted before the obligations take effect will not be subject to the BNG requirements. Equally, a planning permission applied for before the above dates, but granted afterwards, will also not be caught. As a follow on consequence, if such a planning permission is later varied by section 73, that variation will likewise not be subject to the BNG obligations.
2. It is not necessarily easier to meet the BNG requirements on brownfield land.
The rules apply equally to brownfield and greenfield land and regardless of the level of the baseline. The assumption is that often, brownfield sites will have a lower baseline ecological value than their greenfield counterparts. Whilst in some cases this will be the position, it is not necessarily the case. As a particular example, open mosaic habitats are often found on brownfield land and are classified as a ‘high distinctiveness’ habitat in the statutory metric. It therefore remains important to do robust initial assessments of the onsite habitat as early as possible and not assume that a brownfield site will have a low ecological baseline value.
3. The BNG regime applies even where the relevant condition is not imposed on the face of the permission.
The pre-commencement condition requiring a biodiversity gain plan to be submitted is deemed to be imposed regardless as to whether it is included within the decision notice itself. The government guidance on BNG provides councils with a standard form of wording to include as an informative on the decision notice, with the aim of not introducing conditions conflicting with the statutory requirements.
It is important to bear this in mind when reviewing decision notices possibly with the intention of acquiring sites to develop or for investment purposes.
4. It is possible to phase a planning permission for BNG purposes.
Phased development for BNG purposes refers to either (i) outline permission where the reserved matters permit or require the development to come forward in phases; or (ii) any planning permission subject to conditions which permit or require the development to come forward in phases.
Permission for phased developments will be granted subject to the planning conditions requiring the following:
An overall biodiversity gain plan will need to be submitted to the local planning authority prior to commencement of the development as a whole.
No phase of the development can commence until a biodiversity gain plan for that phase has been submitted to and approved by the local planning authority.
If the preference is to phase the BNG delivery, this will need to made clear at application stage and it will be reflected on the decision notice.
5. Whilst the biodiversity gain plan will be secured by planning condition, details on the BNG strategy for the development and how the 10% gain will be secured must be submitted at application stage.
Applications for planning permission will need to include a statement as to whether the applicant believes that planning permission would be subject to the biodiversity gain condition and if not, why not.
Where it is considered that the BNG requirements are applicable, the following information will need to be submitted at application stage (non-exhaustive):
The completed biodiversity metric calculation tool, showing the calculation of the biodiversity value of the onsite habitat.
If any activities have been carried out on the site since 30 January 2020 which have lowered the biodiversity value of the site, a statement confirming those activities and the date when they were carried out.
A plan showing the location of the onsite habitat included in the calculations and any irreplaceable habitat.
Sophie Smith is an Associate in our Planning Team and has a particular interest in the Biodiversity Net Gain regime introduced by the Environment Act 2021.
Following the biodiversity net gain (“BNG”) requirements of the Environment Act 2021 coming into effect on 12 February 2024 and 2 April 2024 for major and small sites respectively, this note summarises some key points we have seen arise to date.
Please also refer to our previous notes of October 2023 and February 2024 for further detail on these obligations.
How are councils approaching BNG at application stage?
Broadly we have seen councils proactively engage with the BNG requirements but as expected, there are a number of issues arising due to local authority resourcing and the capacity to deal with the more onerous obligations associated with complying with the BNG requirements. Please refer to our note from February 2024 for details of what needs to be submitted at application stage.
We have seen some local authorities take an approach to the application requirements which does not accord with the legislative provisions. For example, we are aware of local authorities requiring the offsite gain units (where applicable) to have already been located and identified at application stage. There is no regulatory requirement for this and from a practical perspective, it is often unlikely that applicants and developers will be able to demonstrate this at application stage, particularly given the number of registered gain sites (see further comments below).
Does the bng regime apply where the council does not expressly impose the relevant condition on the face of the permission?
Yes, the pre-commencement condition requiring a biodiversity gain plan to be submitted is deemed to be imposed regardless as to whether it is included within the decision notice itself. It is important to bear this in mind when reviewing decision notices possibly with the intention of acquiring sites to develop or for investment purposes, as we are aware that some councils have not expressly included the condition even where the permission is subject to the BNG regime.
Are planning applications for alterations to building subject to the bng regime?
Alteration applications are not specifically excluded but some of the exemptions could apply. In particular, the BNG regime does not apply to the works carried out pursuant to a development right. Equally, the de minimis exemption is likely to apply in the context of alterations; in broad terms if the works will impact less than 25sqm of onsite habitat the statutory BNG regime will not apply.
It may therefore become important to consider the extent of the application boundary when applying for planning permission, to ensure this does not include any habitat at the property which is not in reality the subject of the application.
Is the biodiversity register working effectively?
The register itself is publicly available and (at the date of this note) shows 11 registered gain sites. The register of course only shows the sites once they have been registered and where applicable the allocation and as a result, it is not representative of the number of sites which are in the pipeline to come forward. We are aware there are various sites where preparation work is underway for the gain sites to be dedicated but where this has not yet completed. Commercially, this may be because landowners are reluctant to tie up their land for this purpose until buyers for the units have been found.
How is the market for offsite gain units emerging?
Given the number of developments which will not be able to deliver the entire required 10% gain on site, the market for offsite units will continue to grow in importance. The hierarchy of mitigation options means the BNG system is to an extent reliant on offsite units continuing to become available, otherwise the default position will be the purchase of the statutory credits which have been priced to disincentivise this option. This balance between the supply of the gain sites and the demand for the units is still emerging in these initial months since the regime became mandatory. As more applications which are submitted requiring offsite units it will become clear whether demand outgrows supply and at that point, whether the resort to the statutory credits becomes more prevalent than it has been to date.
Can applications to allocate units to a development be made at the same time as the registration of the gain site?
Yes, applications to register an offsite gain area and allocate the associated units can be submitted at the same time. This is achieved via the online registration platform. Operating via this approach would be taken where the dedication and allocation has effectively happened simultaneously, perhaps where a landowner has dedicated land specifically for the purposes of providing the relevant units to offset a particular development.
How long does it take to register a gain site and allocate units to a development?
The Government website currently indicates a 6 week period from receipt of the application to registration (provided the application is successful). The time period for this registration gap should be factored into transactional timetables which may be conditional on successful registration of the gain site.
Will it be less onerous to comply with the bng requirements when trying to develop brownfield land?
The level of difficulty in complying with the BNG obligations will often be dependent on the baseline number of units on the site, as this dictates the target level of the 10% uplift. The rules apply equally to brownfield and greenfield land and regardless of the level of the baseline.
The assumption is that often, brownfield sites will have a lower baseline ecological value than their greenfield counterparts. Whilst in some cases this will be the position, it is not necessarily the case. As a particular example, open mosaic habitats are often found on brownfield land and are classified as a ‘high distinctiveness’ habitat in the statutory metric. An open mosaic habitat is identified by hard surfaces interspersed with vegetated areas; an example would be broken or fragmented paving in which habitats have naturally grown and often developing over a long period of time.
It therefore remains important to do robust initial assessments of the onsite habitat as early as possible and not assume that a brownfield site will have a low ecological baseline value.
Is there an industry standard s106 agreement for the purposes of securing bng?
Each local authority will have its own preferred form of s106 agreement for addressing BNG, similar to any other type of planning obligation. In terms of dedicating land as an offsite BNG area, again this will often depend on the dedicating party and whether a local authority or habitat provider are party to the agreement who may have preferred form documents in place.
In terms of the BNG plan to be submitted to discharge the planning conditions, the government has prepared an example plan which can be used to apply to discharge the pre-commencement condition. It is expected that most local authorities’ preference will be that the BNG plans follow this template.
Please get in touch with our Planning Team for any specific advice or guidance on any individual sites.
Information correct as at September 2024. This note is a summary, please refer to the legislation and guidance for full details.
Financing Biodiversity Net Gain requirements – who pays? Sophie Smith shares her thoughts with Sustain
9 August 2024
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Best practice is yet to emerge on how responsibility and cost for compliance with biodiversity net gain (BNG) planning requirements in England will be split between developers, landlords and occupiers. In this article, Sophie Smith, an associate at law firm Forsters, discusses how to lessen the likelihood of disputes between these parties and whether BNG considerations are likely to slow an already sluggish planning system.
BNG aims to leave the biodiversity position of development sites in a measurably better state than before the development was carried out, maintained over a 30-year period. Developments are required to deliver a 10% increase in biodiversity value relative to the pre-development value of the onsite habitat.
Achieving this comes with costs which landowners must factor into the price paid for development sites at the outset. Depending on whether the net gain is provided on-site, off-site, via the purchase of statutory creds, or as a combination, BNG compliance costs arise differently.
For on-site delivery, in addition to the initial cost during development, ongoing maintenance costs throughout the 30-year period will arise. Depending on the nature of the site and at what stage the landlord-tenant relationship arises, these costs could be recovered via service charge. From a landlord perspective, the leasehold allocation of responsibility for BNG should be considered from a future onward sale or funding perspective. Traditionally, landlords have expected a “clean” rent and there is no reason why that could not capture maintenance of on-site, and off-site mitigation. We expect landlords will take a robust position on this, but whether the market will accept that remains to be seen.
Responsibility for maintaining BNG for the requisite 30-year long period will bind successor interests in the site. Where the on-site gain is secured by a s106 agreement, depending on how the s106 is drafted, it could relieve occupiers from responsibility for maintaining onsite BNG. This is distinct from any leasehold covenant of the tenant to be responsible for BNG and apportioning financial and/or active maintenance responsibility for BNG amongst a multi-let estate. Factors to consider include where the relevant mitigation is located within the site and the level of maintenance required to protect the net gain. Careful consideration will be required as to the initial delivery of BNG and separately its ongoing maintenance, particularly in terms of phased planning permissions.
Whilst BNG mitigation is a hierarchical system, with the onus being on on-site delivery in the first instance, an alternative option is to deliver the required BNG by securing off-site units. Whilst this could be expensive for landlords in terms of upfront costs, off-site BNG delivery gives developers more freedom on-site resulting in neater solutions.
A last resort is the purchase of statutory biodiversity credits from the Government, which are invested in habitat creation in England. Depending on the distinctiveness of the habitat, a measure based on the type of habitat and its distinguishing features, such credits can cost anywhere between £42,000 per unit rising to a maximum of £650,000 per unit for the highest value water environments. These costs can be more than ten times the price of delivering on site, according to CBRE, making them significant for developers.
Advance planning, from both landlords and tenants, is crucial to successfully financing and complying with these planning requirements. Equally, additional time should be factored into developments owing to a lack of resource at local authority level, which may cause delays both in obtaining planning permission and discharging the associated pre-commencement condition.
This article was published on Sustain on 07 August and can be read here.
Diversification opportunities for farmers following recent planning changes
30 May 2024
News
There has been some good news for owners of farms and estates with the government confirming a series of reforms to permitted development rights under Classes Q and R of the GPDO 2015 which will make diversification and growth on farms and estates easier.
Class Q covers the change of use from agricultural buildings to dwellinghouses, and Class R covers the change of use from agricultural buildings to various commercial buildings. The new reforms introduce the following changes:
An increase from five to ten on the maximum number of residential dwellings which can be created from a barn conversation;
An increase from 865m2 to 1,000m2 on the total permissible floorspace for residential dwellings created from barns, with a limit of 150m2 per individual unit;
The ability to construct small single storey extensions to barns (subject to certain size constraints);
An extension of the permitted uses to which agricultural buildings can be converted under Class R. The new permitted uses include outdoor sport and recreation facilities, larger farm shops, and farm training centres; and
An increase from 500m2 to 1,000m2 on the limit to the total internal floorspace of buildings that can be converted under Class R.
As of 21 May 2024, all of these changes have now taken effect. However, it is worth noting that the changes will not apply to ‘Article 2(3) land’ such as National Parks, World Heritage Sites, the Broads, Areas of Outstanding Natural Beauty, or conservation areas. In addition, the changes are subject to a number of more specific parameters, limiting their scope in places.
The changes have come as a result of the Department for Levelling Up, Housing and Communities’ consultation on introducing additional flexibility to the agricultural sector, published last year. The intention behind the changes is to encourage greater housebuilding and commercial development on farms, areas which have typically lagged in light of stringent planning requirements. It will also help create new sources of income, diverse business opportunities and increase the value of property. It remains to be seen whether the major parties will commit to any further changes to permitted development rights going into the upcoming General Election, but the recently published DLUHC consultation on changes to permitted development rights certainly indicates that this could be the case.
BNG planning obligations came into effect on 12 February 2024. This means that for most developments, any planning application submitted from this date will be subject to the BNG requirements. Any existing permissions, or applications pending at this date, are not affected.
The obligations are onerous and developers will need specific guidance. Forsters’ planning experts can offer guidance and practical advice on how to navigate the BNG requirements.
Developers get ready for BNG – Sophie Smith quoted in Property Week
24 August 2023
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Planning Associate, Sophie Smith, has been quoted in Property Week’s latest piece addressing biodiversity net gain (BNG) and the November deadline for developers.
From November, developers in England will have to ensure any projects they undertake produce a BNG of at least 10% – and put a plan in place to ensure the gain is maintained for 30 years or more.
Property Week highlighted that some developers will already have experience dealing with this as some councils have implemented such policies in local plans. However, for many others, BNG will be entirely new.
Sophie Smith shared her thoughts on the new guidance acknowledging that it does seem to indicate that the Government is ‘moving in the right direction’ to meet the November target but notes that there are still significant gaps in the regulation and that time is running out.
She goes on to comment “There are still fairly material points that remain to be dealt with via secondary legislation, particularly, for example, in relation to outline schemes or phased developments.”
“Where this information is not clear and local planning authorities are not prepared in advance for the requirements, this will inevitably lead to confusion in the planning system from all sides and delays to applications being progressed.”
“This will particularly be the case if the November target remains and the legislation is published fairly last minute.”
This article was first published in Property Week on 24 August 2023 and is available to read in full here, behind their paywall.
The Environment Act – A Quick Guide for Landowners and Developers
15 February 2022
News
The much-delayed Environment Act 2021 (“the Act”) which finally received Royal Assent during the second week of COP26 (in November 2021), has been described by the UK government as delivering “the most ambitious environmental programme of any country on earth”. The Act introduces far-reaching statutory changes aimed at, amongst other things, increasing biodiversity, restoring natural habitats, reducing waste and making better use of our resources.
The Act brings in mandatory biodiversity net gain provisions through changes to the existing planning regime and introduces the concept of voluntary but legally binding conservation covenants. There is much to digest and in this briefing, our team sets out an overview of the key provisions that landowners and developers alike will need to consider going forward.
Biodiversity Net Gain
Biodiversity net gain refers to an approach to development aiming to leave the natural environment in a measurably better condition than it was to begin with. The part of the Act securing the biodiversity net gain provisions is not currently in force but is expected to take effect for new planning applications in November 2023.
Following implementation, the Act will require a pre-commencement condition to be attached to every applicable planning permission, requiring a Biodiversity Gain Plan to be submitted to and approved by the local planning authority (“LPA”). The Act provides that certain permissions are exempt, for example those granted by development order.
The Secretary of State has the power to expand the categories of development which will be exempt and it is expected that this discretion will be exercised. The ongoing consultation indicates that exemptions are now only proposed for householder applications, changes of use and those development which will impact habitat areas below a de minimis threshold.
This plan must set out how a net biodiversity gain of at least 10% can be achieved for the development by:
Having biodiversity included on the site or at a registered biodiversity gain site (being off-site) or
Purchasing biodiversity credits through the government’s system (which will be established through secondary legislation).
As this condition is mandatory and imposed by statute, it will be possible to submit the required information in support of the planning application at the initial stage (where the information is available) rather than via an application to discharge a condition.
The metric by which the biodiversity value of a site will be measured has not yet been finalised and will be brought forward via secondary legislation. Any habitat enhancement introduced by works to increase the biodiversity value of the on-site habitat, or off-site provision of biodiversity gain, is required to be maintained for a period of 30 years from completion of the development. This will be secured by a planning condition, planning obligation or conservation covenant (see page 3) and the associated enforcement will fall within the planning system.
A government consultation is currently ongoing in order to finalise the details of the associated secondary legislation and will close on 5 April 2022. Further details can be found here.
Developer Considerations
Biodiversity assessment
Potentially undertake a biodiversity assessment prior to submitting the planning application, so that the biodiversity value of the site is known. This may make it easier to anticipate the LPA’s requirements in respect of the net biodiversity gain for the development in granting the planning permission.
Design process
Biodiversity could be integrated into the design of the development to achieve the necessary net biodiversity gain.
Availability of offsite biodiversity options (if required)
There will be a register of such sites which can be consulted to ascertain nearby sites. Maintaining such offsite options may be achieved by a developer entering into a conservation covenant to procure that a charity or other organisation manages a biodiverse site away from the development site (see further details below on conservation covenants).
Availability of biodiversity credits
It is not yet clear how easy it will be to purchase credits; the National Planning Policy Framework already includes a biodiversity mitigation hierarchy as guidance for LPAs and places compensation for biodiversity harm as the last resort.
Public relations for the development
With many developers now having sustainability targets, their actions relating to biodiversity net gain may be more heavily scrutinised and the results will be publicly available via the planning process.
ESG requirements of stakeholders
Developers may also need to consider their investors, lenders, tenants or other stakeholders’ sustainability requirements in their decisions on achieving a net biodiversity gain for the development.
Conservation Covenants
Conservation Covenants (“CCs”) are voluntary but legally binding agreements between a landowner and a designated ‘responsible body’ such as a conservation charity, public body or for-profit body to conserve the natural or heritage features of the land. Conservation covenants can contain positive and restrictive obligations to fulfil conservation objectives for the public good. Designed to be flexible, the parties can negotiate the terms (including the duration) to suit their circumstances. Generally, they will bind subsequent landowners and therefore have the potential to deliver long-lasting conservation benefits.
Though novel in England and Wales, there are existing covenants in favour of the National Trust which can, and does, enforce broad conservation restrictions on land. CCs also exist in various forms in Scotland, New Zealand, Australia, Canada the USA and elsewhere.
It will be interesting to see how CCs will work in practice.
How will they be enforced?
Which organisations will be allowed to take the benefit of CCs?
Where will they find the resources to enforce them?
What happens if the organisation ceases to exist? The government has deliberately designed CCs as a private sector tool, but it might find itself the enforcer of last resort.
What can they cover?
The legislation is drawn widely and leaves plenty of room for discussion about what might fall within it. A CC may act to conserve:
The natural environment of land or the natural resources of land.
Land as a place of archaeological, architectural, artistic, cultural or historic interest.
The setting of land with a natural environment or natural resources or which is a place of archaeological, architectural, artistic, cultural or historic interest.
Landowner Considerations
CCs will automatically limit and, therefore, impact upon the value of land, so landowners should think carefully about entering into them. There are three main incentives to do so:
Altruism and environmental conscience.
As a means of discharging its bio-diversity net gain obligations under a planning agreement (which is specifically allowed for under the Act).
As a contractual means of securing obligations benefitting natural capital, such as carbon sequestration.
At the moment, there is no tax incentive for CCs. However, that may change if the government wishes to encourage their use and/or align them with the wider green agenda.
Tree Felling
The key changes to the law relating to tree felling which may impact landowners are set out below. Note however that the date they will come into force has not yet been confirmed:
Illegal felling land charge: there is now a new power for a Local Land Charge to be created where illegal felling of trees has taken place on a piece of land. This is something that should be noted when undertaking due diligence of a property. Additionally, landowners considering felling trees on their land should check whether they have the relevant felling permissions otherwise they may then incur a Local Land Charge on their property.
Consultation prior to felling: a duty has been imposed on local highway authorities in England to consult before felling urban road trees. Urban roads are those that are not trunk or classified road and which are restricted to 30 miles or 40 miles an hour or otherwise a street in an urban area. However, there are certain exemptions for:
Small trees (diameter of the trunk being no more than 8cm at 1.3m above ground level).
Dead trees.
Where the tree is required to be felled owing to a disease.
Where the tree is dangerous.
Causing an obstruction.
Where a development (and the felling of a tree being part of that development) has been authorised by planning permission.
The Act is a significant step towards protecting and improving people’s health and the natural environment, but it is only the beginning, and much will depend on further targets and policies that are yet to be developed through further consultation and engagement.
We are committed to running a business that is environmentally sustainable. Not only do we continually strive to minimise our impact on the environment, but we have years of experience of incorporating sustainability considerations into the legal advice that we provide to our clients.
Our sustainability hub brings together the team’s insights and legal expertise on a broad range of environmental matters that affect our clients’ business and personal affairs. This is a rapidly evolving and wide-ranging area of law and we will continue to share our insights about related legal developments on this hub.
Following the recent introduction of significant new planning legislation, our Planning team have outlined a useful guide to the new use class system and a guide to new permitted development rights.
Government Introduces New Permitted Development Rights
23 July 2020
News
As the independent review into residential properties built under existing permitted development rights is published, the government has introduced three new statutory instruments (coming into effect in September 2020) further amending both permitted development rights and the use class system, to ‘deliver much-needed new homes and revitalise town centres.’
1. Demolition of buildings and construction of new homes
A new Class ZA Permitted Development Right has been introduced, for the demolition of the buildings listed below and replacement by either a single purpose built detached block of flats, or a purpose-built detached house.
A single purpose-built detached block of flats, and
Any single detached building established for:
Office use within Class B1(a);
Research and development within Class B1(b); or
Industrial process within Class B1(c).
There are a number of restrictions on this right and of particular note, where the above Class ZA development will not apply, are the following:
If the old building was constructed after 31 December 1989;
If the building is listed;
If the footprint of the building exceeds 1,000 square meters; and
Unless the old building has been vacant for at least 6 months immediately prior to the application for prior approval.
Any developer must apply to the local planning authority for prior approval with an extensive range of factors open for consideration including the design of the building, its external appearance, impact on the neighbouring amenity and notably, the provision of adequate natural light in all habitable rooms of each new house/flat.
2. Additional storeys to homes
Home-owners will now be entitled to increase the size of their homes by adding:
Up to two additional storeys, where the existing house consists of two or more storeys; or
One additional storey, where the existing house consists of only one storey.
Again, there are a large number of restrictions on the operation of this right including the following:
The house was constructed before 1 July 1948 or after 28 October 2018;
Additional storeys have already been added to the original house, whether by operation of this right or otherwise;
Following the development, the height of the highest part of the roof does not exceed 18 metres.
Any development will need to comply with a number of conditions, an example is the external materials used must be similar to those in existence and that it must not include a window in any wall or part of the roof on a side elevation of the house. An application for prior approval is necessary and can be refused by the local planning authority on the basis that the development does not comply with the extensive restrictions and conditions set out in the legislation.
This is in addition to legislative amendments introduced last month, permitting blocks of flats with at least three storeys to be extended upwards by an additional two storeys (subject to a range of detailed restrictions on both the location and age of the building, as well as the extensions itself).
These new rights have been criticised for not fast-tracking the planning process, on the basis of the very extensive grounds for refusal in the prior approval process. Concerns have also been raised that these rights will create poor standards of residential development which do not accommodate wellbeing and quality of life, leading to communities which are less attractive to business and to residents, at a time in which regeneration of town centres has hit the headlines.
This is a particularly relevant point in light of the independent report into permitted development built housing published this week.
Review of Permitted Development Housing
The independent report highlighted its findings into the difference in residential accommodation constructed pursuant to permitted development rights, against those subject to full planning permission. In some areas, there was found to be minimal or ‘no obvious differences’ between the categories of housing, for example in relation to open space and provision of parking.
However, the report makes it very clear that in some areas of comparison there is a ‘much more significant difference between schemes created through planning permission and those created through permitted development”. A particularly stark contrast is in relation to whether the units met the national described space standards, of which only 22.1% of units created through PD met compared to 73.4% created through full planning permission.
Whilst provision has been made in the prior approval process of the new legislation discussed above, that each residential unit has adequate natural light, this is a minimum level of protection when considered against the concerns which this report publishes. If the operation of these new rights leads to an intensification of housing which is located in commercial areas, with the consequential loss of business space, it is unclear how the concerns raised by this report will be eased.
It therefore remains to be seen to what extent the residential units created by the new permitted development rights will accommodate the findings of this report. Given that the government’s message is ‘Project Speed’ and as discussed in my colleague’s recent blog, it seems likely timescales will prevail over quality. We also query whether this is the right way to deliver new housing as the residential units created under permitted development rights will not attract Community Infrastructure Levy or provide affordable housing. This will therefore not address the country’s ever increasing affordable housing shortfall or fund much needed infrastructure. Surely a better way to get the country building again would be to properly fund local planning authorities? We are not alone in voicing concerns over these proposals with RIBA, the RTPI, RICS and 22 London Boroughs all writing to the Secretary of State urging him to reconsider these latest measures.
The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020 No.757) were introduced by the government on 20 July, and take effect on 1 September 2020. The new Regulations make radical changes to the 1987 Use Classes Order. These changes sit alongside the recent additions to permitted development rights, forming part of the government’s “Project Speed”, with the aim being to support the high street revival and allow greater flexibility to change uses within town centres without the need for express planning permission.
